Case 12.738 – Opario Lemoth Morris and Others (Buzos Miskitos)

Amistero Vans Valeriano testifies before the IACHR about his experience as a diver and the health complications he suffers as a result.

Commissioners: Commissioner José de Jesús Orozco Henriquez; Commissioner Felipe González Morales; Commissioner Luz Patricia Mejía; Commissioner Paulo Sérgio Pinheiro
Participants: Association of Disabled Honduran Miskito Divers, Association of Miskito Women, Almuk Nani Asla Takanka Council of Elders, CEJIL, Government of Honduras
Country: Honduras
Topics: Case regarding alleged discrimination against the Miskito people in Honduras, many of whom are divers for fishing companies and suffer from health complications as a result of work conditions.

“The Miskito people suffer from triple discrimination: they are indigenous, they are poor, and they are disabled,” said Marcia Aguiluz of the Center for Justice and International Law (CEJIL). Over forty percent of the Miskito people who work as divers in Gracias a Dios, Honduras have become disabled from decompression syndrome. The failure of the government to protect the Miskito from the hazards of diving form the basis of the petitioners’ complaint against Honduras (State) before the Inter-American Commission on Human Rights (Commission). The Association of Disabled Honduran Miskito Divers, the Association of Miskito Women, and the Almuk Nani Asla TakankaCouncil of Elders, along with CEJIL, collectively represented the Miskito community (petitioners) at a Commission hearing on October 24, 2011.

The IACHR issued an admissibility report in November 2009 confirming the complaint’s admissibility in relation to the alleged violation of rights established by the American Convention on Human Rights. Specifically alleged to have been violated were the rights to life, humane treatment, a fair trial, equal protection, and judicial protection, as well as the rights of a family, the child, the freedom from forced labor, and the state’s obligation to progressively achieve full realization of economic, cultural, and social rights.

Over seventy percent of the Miskito population is engaged in fishing and agricultural activities. The petitioners argue that a dearth of economic opportunity effectively forces the Miskito work as divers for fishing companies that do not provide adequate training or occupational safeguards. The petitioners allege that the fishing companies make the divers dive to greater depths and remain submerged for longer periods of time than permitted under regulations designed to prevent decompression syndrome, which can result in disability or death.

The petitioners fault the State for failing to protect the divers. While Honduran law provides a remedy for employment disputes, the petitioners argue that the State ineffectively pursues resolutions and enforces judgments. In its admissibility report, the Commission noted that the State’s mechanisms to resolve labor disputes and exploitation allegations are inadequate given the Miskito’s particular vulnerabilities, especially poverty, disability, geographic isolation, and language barriers.

At the hearing, Amistero Vans Valeriano testified about his experience as a diver and the health complications he suffers as a result. Valeriano suffers from decompression syndrome. He did not receive medical treatment until four days after his accident in September 2000, and is now unable to provide for his family. Valeriano filed a complaint with the Ministry of Labor to collect social security and other compensation, but received no response.

Ethel Deras Enamorado, the State’s Attorney General, noted that there have been important advances since Valeriano’s accident. The regional health office has expanded the number of rural health centers and employs Miskito-speaking staff. Enamorado mentioned that the Vice-Minister of Indigenous Peoples is Miskito, and that a World Bank agreement for a human capital development project for indigenous communities was recently signed. Additionally, Enamorado highlighted the development of an educational campaign, including a diving manual translated into Miskito and promoted through the radio. Finally Enamorado noted that sixteen cabinet secretaries are creating a sustainable development plan for indigenous and afro-Honduran communities, intending to include meaningful grassroots participation.

Following the testimony, Commissioner Jose de Jesus Orozco Henriquez asked both parties to identify public policies to prevent diving accidents and to explore the possibility of a friendly settlement in the case. Both parties agreed that official mechanisms exist; the problem, according to CEJIL, is that they are unenforced. Both parties expressed their amenity to a friendly settlement, though CEJIL emphasized that the petitioners are seeking a comprehensive solution to the problem, rather than isolated policies.

Commissioner Felipe Gonzalez Morales asked both sides to elaborate on the State’s duty to develop policies toward the progressive realization of economic, social, and cultural rights. Commissioner Luz Patricia Mejia Guerrero and the Commission’s Executive Secretary, Elizabeth Abi-Mershed, asked the petitioners to explain how diving constitutes forced labor, and what immediate actions are available to create alternative economic opportunities. CEJIL responded that because there is no alternative economic opportunity in the region and the State does not enforce its safety norms, the Miskito are forced to suffer the inevitable injuries. She urged the state to prioritize enforcing existing regulations over developing alternative opportunities, which take more time. Enamorado claimed that the blame lies with the fishing companies because the State already fulfills its duty by performing worksite inspections. Enamorado also suggested that some divers are responsible for their own injuries by not taking all possible precautions or ignoring existing standards. Commissioner Orozco concluded the hearing by clarifying that while the Commission prefers a friendly settlement, it will issue a report if such a settlement does not occur.